The Gazette 1993

GAZETTE

N 'S M

APRIL 1993

p R E S

D E

E S S A G E

Legal System Suffers from

Acute Underfunding

In my address to the Annual Dinner

of the Council of the Law Society,

which took place on 11 March last, I

dealt with a wide range of issues of

concern to solicitors and, in

particular, the acute underfunding of

the administration of justice in this

country which I believe is bringing

the legal system into disrepute. As a

result of such under resourcing the

basic rights of many citizens are not

being provided for as they should.

Too few judges, unsuitable

courthouses, the lack of any real

facilities in them, unreasonable

delays in the courts, insufficient

investment in technology and, I am

sad to say, inadequate management,

insufficient custodial facilities, the

failure to update the law in many

areas and, finally, the abysmal

system of legal aid are now giving

rise to serious concern. I hope that

by highlighting these difficulties,

appropriate remedies can be sought

for them. While I am delighted that

the Judicial Commission, provided

for in the Programme for

Government, is now being

established, I would urge that

representatives of

both

branches of

the legal profession should be

appointed to the Commission.

Forthcoming legislative changes in

regard to family law will again

seriously call into question the

adequacy of our present system of

legal aid. To give a comparison, the

current budget for legal aid both

criminal and civil in this country is

about £6 million per year, in

England and Wales alone the

corresponding figure is £1,200

million. On a proportionate per

capita basis they are spending 14

times as much as we are.

The State's obligation to provide a

comprehensive system of legal aid

has been established by the

European Court of Human Rights in

the Irish case of

Airey

where it was

clearly stated that the European

Convention on Human Rights

generally is intended to guarantee

not rights that are theoretical or

illusory but rights that are practical

and effective. This is particularly so

of the right of access to the courts

in view of the importance in a

democratic society of the right to a

fair trial. The response by this

country falls far short of what is

required. The Law Society has made

a full submission to the Government

in regard to the introduction of a

comprehensive scheme of civil legal

aid.

Lawyers' Role in Society Undervalued

Lawyers have an important role in

society, in that clients rely on lawyers

for the protection and vindication of

human and constitutional rights.

Clients rightly request solicitors to

defend them in cases taken against

them by the State under the criminal

code and rightly require solicitors to

institute or defend proceedings for

compensation and other civil claims.

Because of the serious lack of a

proper civil legal aid system in this

country, there is a strong pro bono

tradition amongst lawyers under which

they frequently take cases, without

charging a fee, for clients who could

not otherwise afford to vindicate their

rights and pursue justice.

Solicitors, in common both with

other business people, have over the

years been required to become part

of the system of tax collection,

particularly in cases of stamp duty,

registration fees and capital taxes.

Solicitors are also professionals in the

business world, running businesses

that give employment and generate a

high level of economic activity.

seems to me that the successive

Governments have consistently

undervalued the importance of

solicitors' involvement in the

economy.

The most outstanding

example of this is the attack by

Government on the traditional

cornerstones of solicitors' work -

probate and conveyancing - by

permitting banks and other financial

institutions to engage in these

activities.

Government also "rewards" the

profession by annually bringing in

layer upon layer of bureaucratic

procedures of very dubious value,

such as further certificates and

declarations for particular

transactions, which not only

complicate matters and delay

overburdened practitioners, but also

expose them to greater liability.

Government also burdens solicitors by

increasing the amount of tax to be

collected by them. Registration fees,

courts fees and other form of hidden

taxes are regularly increased without

notice, and without debate.

For example, this year's budget

introduced a new probate tax under

which those inheriting under a will

or an intestacy will have to find

substantial funds in advance in order

to obtain a Grant of Representation

which would allow them the legal

right to gain access to the assets of

the deceased's estate. While I admire

the imagination of the Department

of Finance and its ability to squeeze

further taxes from unlikely sources it

is nevertheless unfortunate that

survivors and dependants should be

treated in this way.

These are just some of the issues I

dealt with in my address to the

dinner which was attended by a

number of judges, members of the

Oireachtas, and representatives from

other professional and business

organisations.

We were particularly fortunate to

have Lord Williams of Mostyn QC,

a former chairman of the Bar

Council of England and Wales, as

our guest speaker (see page 88), and

I would like to put on record my

personal thanks to him.

Raymond T. Monahan,

President.

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